HAIAPPA v. RETURNING OFFICER — 1987 DIGILAW 272 (KAR)

RAMA JOIS, J. ( 1 ) IN this petition in which the petitioner has questioned the declaration made by the munsiff, shikaripur, in an election petition presented under Section 14 of The Karnataka Zilla parishads, Taluk Panchayat samithis, Mandal Panchayats and Nyaya panchayats Act, 1983, ('the Act' for short),that respondent Nb. 2 is elected from no. 8 Didagur constituency of Govinakovi mandal Panchayat, Honnali Taluk, the following two questions of law arise for consideration: (1) Whether this writ petition should not be entertained on the ground that a revision petition under Section 115 of the C. P. C. is maintainable before this court against an order made by a munsiff in an election petition presented under Section 14 of the act? (2) Whether Section 20 of the Act requires that after pronouncing an order in an election petition presented under Section 14 of the Act by the munsiff that there has been equality of votes between the two candidates at an election, a further date should be given for the purpose of taking the lot and declaring the person who should be regarded as having been elected to the constituency concerned? ( 2 ) THE petition has come up for preliminary hearing. Sri T. S. Ramachandra, learned counsel, has taken notice for respondent No. 2. Government Advocate is directed to take notice for respondent No. 1 and the petition is taken up for final hearing by consent of the counsel appearing for the parties. ( 3 ) THE undisputed facts of the case are these: The petitioner and respondent No. 2 were the candidates contesting election from no. 8 Didagur Constituency of Govinakovi mandal Panchayat, Honnali Taluk, constituted and functioning under the provisions. of the Act. After the election was held, the returning Officer had declared the petitioner elected on the basis that he had secured 332 votes as against 331 votes secured by the second respondent. Thereafter, the second respondent presented election petition before the Munsiff under section 14 of the Act. The grievance of the second respondent was that 'one' vote which ought to have been counted as valid vote, had been rejected by the Returning Officer on the ground that it was mutilated. Both the parties appeared before the Munsiff and evidence was recorded. The records were also produced by the first respondent. The grievance of the second respondent was that 'one' vote which ought to have been counted as valid vote, had been rejected by the Returning Officer on the ground that it was mutilated. Both the parties appeared before the Munsiff and evidence was recorded. The records were also produced by the first respondent. On 29-7-1987 arguments on both sides were heard and the case was posted for orders to 5-8-1987. On the said date, an order was pronounced and according to the order, the petitioner as well as respondent No. 2 were found to have secured 332 votes each. In cases where the Munsiff finds that there has been equality of votes between the two candidates, the procedure to be followed is prescribed under Section 20 of the Act. It reads:"20. PROCEDURE IN CASE OF equality OF VOTES - If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then the Munsiff shall decide between them by lot and proceed as if the one on whom the lot falls had received an additional vote. "rule 70 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats (Conduct of Election)Rules, 1985 ('the Rules' for short) prescribes a similar procedure for declaration, of result of an election at which two or more candidates have secured equal number of votes after counting, to be followed by the Returning Officer. The said rule reads:"70. EQUALITY OF VOTES: If after the counting of the votes is completed an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of those candidates to be declared the returning officer shall forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote. "on 5th August, 1987, the learned Munsiff after pronouncing the order, as aforesaid, proceeded to decide the result by lot. In doing so, instead of referring to Section 20 of the Act, he referred to Rule 70 of the Rules. The procedure followed is recorded in the order sheet. A certified copy of the order sheet has been produced. "on 5th August, 1987, the learned Munsiff after pronouncing the order, as aforesaid, proceeded to decide the result by lot. In doing so, instead of referring to Section 20 of the Act, he referred to Rule 70 of the Rules. The procedure followed is recorded in the order sheet. A certified copy of the order sheet has been produced. The entries made in the order sheet (consisting of several grammatical/typographical errors underlined by me) reads:"5-8-1987 Petr. by Sri T. H. H. Respt. No. l. in person respt. No. 2 by Sri MLS/kvm. ORDER - Order pronounced in open court today. The Election Petition is allowed and declared that each candidates secured 332 votes each and their election has to be declared in accordance with Rule 70 of the Rules of 1985 in the open court in the presence of both parties. Id. Chandraiah 5-8-87 Munsiff and jmfc, Shikaripur. Petitioner present. The respondent No. 2 is not present. So case is kept by in order to see whether he arrives for him court is awaited till 1. 45 p. m. He has not come to the Court. So in the presence of all the members of the bar in the open court, on one paper name of petitioner is written by me and then on the other paper the name of 2nd respondent is written by me. The each one is rolled. Then both are put into the paper box and then shaked. Miss Netravathi a new Advocate, who is attending this Court today is being asked to pick only one rolled paper. She exame to the box and picked one rolled paper. It is opened by me and read the name. It is of Sri Palakshappa - petitioner. Then Advocate said is being asked to pick the other rolled paper and she picked and read it. Halappa's name is announced. It is verified and found correct. So as a result of this u/o 70 is lot Sri palakshappa i. e. petition is declared as elected candidate from the No. 8 Didagur constituency of Govinakovi Mandal panchayat for the general seat. So, declaration form is issued accordingly. Further office is directed to intimate the concerned officer forthwith. No Cost. File. Id. Chandraiah. 5. 8. 87, munsiff andj. M. F. C, shikaripur. "this writ petition is directed against the above procedure followed by the learned munsiff. So, declaration form is issued accordingly. Further office is directed to intimate the concerned officer forthwith. No Cost. File. Id. Chandraiah. 5. 8. 87, munsiff andj. M. F. C, shikaripur. "this writ petition is directed against the above procedure followed by the learned munsiff. ( 4 ) THE learned counsel for the second respondent has raised a preliminary objection. He submitted that according to section 14 of the Act an election petition lies to the Munsiff, which is a court in the hierarchy of regular civil courts. An order made by the Munsiff in exercise of the said power is subject to revision under Section 115 of the C. P. C. and if Section 115 of the c. P. C. is attracted, it follows that a petition under Article 226 of the Constitution cannot be entertained. In support of this submission, the learned counsel relied on an unreported judgment of Muralidher Rao, J in W. P. 138/79, DD 16-6-1987. The view taken in that case is that, as against a decision rendered by a District Judge exercising his powers as Educational appellate Tribunal under the provisions of the Karnataka Private Educational institution (Discipline and Control) Act 1975, a revision petition under Section 115 of the C. P. C. lies to this Court and therefore a writ petition cannot be entertained. ( 5 ) SRI. A. S. Vishwanath, learned counsel for the petitioner, submitted that the ratio of that decision was not applicable to this case, for, there was no provision in that Act making the decision of the District Court final, whereas under Section 19 of the Act the decision of the Munsiff in an election petition is made final. ( 6 ) IN my opinion, the decision of the Full bench of this Court in MJVI. YARAGATTI v vasant 1987 (2), Kar. LJ. 9 (FB) AIR 1987 kar. 186 ) is a complete answer to the objection raised by the learned counsel for respondent No. 2. ( 6 ) IN my opinion, the decision of the Full bench of this Court in MJVI. YARAGATTI v vasant 1987 (2), Kar. LJ. 9 (FB) AIR 1987 kar. 186 ) is a complete answer to the objection raised by the learned counsel for respondent No. 2. The ratio of the said decision is that in cases where under the provisions of a special enactment a special forum is created for deciding disputes arising under such enactment and the provisions of the Act further provides that decision rendered by such a court is final, no revision under Section 115 of the C. P. C. lies to the high Court, even if the special forum happens to be a court subordinate to the high Court. From this it follows that a party aggrieved by the decision rendered by a court subordinate to the High Court in exercise of the special jurisdiction conferred on it under such law would be entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution of india. That is the position here. An order made by a Munsiff in an election petition presented under Section 14 of the Act is made final by Section 19 of the Act. The said section reads: "19 (2), The decision of the Munsiff shall be final. " in view of the above provision, which gives finality to the decision of the Munsiff rendered under Section 14 of the Act, it is only the extraordinary jurisdiction of this court under Article 226 of the Constitution that could be invoked and not its ordinary jurisdiction under Section 115 of the C. P. C. For the above reasons, I answer the first question in the negative and reject the contention of the learned counsel for respondent-2 that the writ petition should not be entertained. ( 7 ) ELABORATING the submission with regard to the second question, the learned counsel for the petitioner submitted as follows: Rule 70 of the Rules which confers power on the returning Officer to declare a person elected by taking lots, in a case where there has been equality of votes among the candidates, requires the Returning Officer to forthwith decide by tot as to who among the candidates who have secured equal votes, should be declared elected. In the present case, the learned Munsiff had proceeded on the basis that Rule 70 of the Rules was attracted, though it was not applicable to the exercise of the power by the Munsiff in diciding an election petition. In view of section 20 of the Act, if the Munsiff finds that there has been equality of votes between more than one candidate, he should pronounce such an order in the first instance. He should thereafter fix the date and time for taking the lot. In the present case, the munsiff had no doubt given the date for pronouncement of the order, but after he recorded a finding and pronounced the order that there had been equality of votes between the petitioner and the second respondent, he did not fix a date and time for taking the lot. He waited only for a few hours and proceeded to take the lot and thereafter declared the second respondent as elected. Such a procedure is not warranted by Section 20 of the Act as the word 'forthwith' used in the rule is not found in section 20 of the Act. Further, deciding by lot without fixing the date and time for taking the lot was also violative of the principles of natural justice. ( 8 ) AS against the above submission, the stand taken on behalf of the respondents is as follows: When a date for pronouncement of order is given, it follows that the order which is likely to be made by the Munsiff would fall either under Section 19 or Section 20 of the Act. If the order falls under section 19 of the Act, there would be an end of the matter. But if the finding recorded by the Munsiff is the one which attracts Section 20 of the Act, it means that the date given for pronouncement of the order includes the further step contemplated by Section 20 of the Act. An order in an election petition is not complete until the lot is taken in a case to which Section 20 of the Act is attracted, and a declaration is made as to which of the candidates is elected. Therefore, there is no substance in the contention of the petitioner that a further time should have been fixed by the learned Munsiff. Therefore, there is no substance in the contention of the petitioner that a further time should have been fixed by the learned Munsiff. ( 9 ) AFTER giving careful consideration to the rival contentions, it appears to me that there is no defect in the procedure followed by the learned Munsiff. It is true that there is a slight difference between the wording of section 20 of the Act and Rule 70 of the rules. It is also true that Rule 70 of the rules prescribes the procedure to be followed by the Returning Officer after counting of votes in the event of therebeing equality of votes among the candidates and section 20 of the Act prescribes the procedure to be followed by the Munsiff in an election petition in which the finding recorded is equality of votes among the candidates. In Rule 70, the word 'forthwith' is used, whereas that word is not used in section 20 of the Act. In my view it makes no difference. The purport of Section 20 of the act and Rule 70 of the Rules is one and the same. In an election petition presented under Section 14 of the Act, what the Court is required to do under Section 20 of the Act in the case of equality of votes is the same as the Returning Officer is required to do while exercising the powers under Rule 70 of the rules. There is also force in the contention of the second respondent that pronouncement of an order in an election petition means the final order, which disposes of the petition and from this it follows that in the case of equality of votes, unless the procedure prescribed under Section 20 of the Act is followed and a declaration is made, the order in an election petition would not be complete. Therefore, when a date is given for pronouncement of an order in an election petition, it means that in the event of therebeing a finding that two or more candidates have secured equal votes, the munsiff would also make a further order in terms of Section 20 of the Act. Therefore, the petitioner cannot plead that he was not aware that lot would be taken on the date on which the case was fixed for pronouncement of orders. Therefore, the petitioner cannot plead that he was not aware that lot would be taken on the date on which the case was fixed for pronouncement of orders. ( 10 ) AS far as the procedure followed by the Munsiff is concerned, it is very clear from the order-sheet that the Munsiff had fixed the date for pronouncement of order and after pronouncing the finding that the petitioner and the second respondent have secured equal number of votes, he waited for some time for the arrival of the learned counsel for the petitioner or the petitioner, and as neither of them turned up, the learned munsiff proceeded to decide by lot as provided in Section 20 of the Act. The petitioner and his counsel who were aware of the date for pronouncement of order, admittedly remained absent. Therefore, the contention of the petitioner that there was violation of Section 20 of the Act or the rules of natural justice, is devoid of any merit. For these reasons, I answer the second question set out in the first paragraph as follows:"section 20 of the Act does not require that after pronouncing an order in an election petition presented under Section 14 of the Act by the Munsiff that there has been equality of votes between the two candidates at an election, a further date should be given for the purpose of taking the lot and declaring the person who should be regarded as having been elected to the constituency concerned. " ( 11 ) IN the result, I make the following order: (i) The writ petition is dismissed without any order as to costs. Sri L. M. Pandurangaswamy, HCGP, is permitted to file his memo of appearance in two weeks. Writ Petition dismissed. --- *** --- .